R v James Douglas McCourt No. 4256 Judgment No. SCCRM 93/297 Number of Pages 8 Evidence Facts Excluded from Proof (1993) 69 a Crim R 151

[1993] SASC 4256

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL BOLLEN(1), DUGGAN(2) AND MULLIGHAN(3) JJ

CWDS
Evidence - facts excluded from proof - Produce cannabis - application by Director of Public Prosecution for leave to appeal against sentence refused - the Director uses this case as a vehicle to invite this Court to hold that judicial notice of the normal yield, current wholesale value and retail value of cannabis Plants - invitation declined - these matters must be proved, if not agreed, in each case. Controlled Substances Act 1984s 32(l)(a). R v Osenkowski (1982) 30 SASR 212; Holland and Anor v Jones (1916-17) 23 CLR 149 at 153-154; Auckland City Council v Hapimana (1976) l NZLR 731 and Commonwealth Shipping Representative v Peninsular and Oriental Branch Service
(1923) AC 191 at 211 and 212, applied. Lekakis v R (Court of Criminal Appeal, 8 December 1992, unreported, No.3753), distinguished. Evans v Benson (1987-88) 46 SASR 317 at 320, discussed.

HRNG ADELAIDE, 20 September 1993 #DATE 10:11:1993
Counsel for appellant:     Mr J J Doyle QC
   with Mr G J Parker
Solicitors for appellant:    Director of Public Prosecutions
Counsel for respondent:     Mr W P Boucaut
Solicitors for respondent: Jenkins Anderson and Co

ORDER
Appeal dismissed.

JUDGE1 BOLLEN J This is an application by the Director of Public Prosecutions for leave to appeal against the sentence imposed on the respondent in the District Court. 2. The respondent was charged with "producing cannabis" (s32(1)(a) of the Controlled Substances Act 1984). He pleaded "guilty". 3. The respondent grew a crop of cannabis on his small farm at Kapinnie. Kapinnie is some 30 kms or more from Cummins. At the time of his arrest there were 49 plants. Most were female. He had planted more. It was not at all a professional undertaking. There was, for example, no real system of irrigation. The oral evidence and photographs support the description of the crop offered us by Mr Boucaut, for the respondent. He said:-
    "Can I ask the Court to consider the nature of this cannabis
    crop, first of all. The respondent agreed that the plants, if
    harvested at full maturity, might have produced 16 pounds -
    possible value $48,000. If His Honour wanted to work to those
    figures, then as far as the respondent was concerned, that was,
    in a sense, an agreed fact.
     His Honour had reference to the general layout of this
    particular crop. It wasn't such as one might see in the case of
    Lekakis that was put by my learned friend Mr Doyle - an
    organised, well laid out crop where somebody with an obvious
    knowledge in horticulture was setting out to do an organised
    plantation, as it were.
     Your Honours can see from the photographs in this case, that
    Judge Allan was dealing with a haphazard type of a crop where a
    good number of the plants sere in pot-plants in essentially two
    main areas - around the chook yard - no organisation at all.
    Indeed, there was evidence before His Honour that the chooks had
    partaken of the crop either in the sense of the respondent
    feeding the chooks." And - "The evidence was that the chooks
    had been at the marijuana and so had two of the mice. All of
    this points to it not being an organised plantation, but on the
    contrary, a very disorganised rough and tumble effort which
    enabled His Honour to come to the conclusion which he did at
    p76, that it was certainly, as far as commercial crops go, an
    effort towards the lower end of the scale; and one only has to
    look at the photographs to realised that." 4. All this was an accurate description but, of course, the crop did have a potential value of $48,000. Small compared with some crops but significant. 5. The respondent was 54 years of age. He was "on" unemployment benefits. He had no relevant prior convictions. 6. The learned sentencing Judge said:-
    "I take into account all the things that can be said on your
    behalf by your counsel. I expect you will not be back in this
    court again. I do not see your offence as the most serious of
    its type: if anything it is towards the lower end of the scale
    as these things go. I think there is little chance of you
    offending in this way again.
     The sentence of the court is that you be imprisoned for 15
    months. That sentence will be suspended on your entering into a
    bond in the sum of $1,000 to be of good behaviour for three
    years." 7. The maximum sentence for the offence is a fine for $50,000 or imprisonment for 10 years, or both. This demonstrates that Parliament regards the offence as serious. 8. The grounds upon which leave is sought are:-
    "1. The learned Sentencing Judge erred in failing to fix a
    non-parole period.
     2. The sentence is manifestly inadequate in that:-
     (a) it failed to adequately reflect the gravity of the
    respondent's criminal conduct;
     (b) it failed to adequately reflect the concept of general
    deterrence
     3. The Learned Sentencing Judge erred in suspending
the sentence of imprisonment." 9. The Solicitor-General, who appeared for the applicant, produced a document showing the change in penalties for "cannabis offences" since May 1985. 10. It is certainly well for us to have this document before us to see clearly those changes. In addition the Solicitor-General proffered a note of some cases and the penalties imposed under s32 of the Controlled SubstancesAct. This, too, was useful. Certainly mere comparison would found an argument that the penalty here was inadequate. But, of course, we are not to decide by mere comparison. Moreover, leave cannot be granted unless it is shown that the sentence is manifestly inadequate. I have considered past cases but do not propose to discuss them save to say that I think that the case of Lekakis v R (unreported: Court of Criminal Appeal 8th December 1992: No.S3753) is not one with which this case can be compared. They are quite different. In Lekakis there were 224 plants. They were well concealed by an experienced horticulturist. He had a conviction for possessing Indian hemp. It was a professional undertaking plainly for commercial purposes. 11. The respondent here sought to persuade the learned Judge that "his" cannabis was all for the use of himself and his friends. The learned Judge did not believe him. But the learned Judge said:-
    "I am satisfied that you produced the cannabis for
    commercial purposes. That is, I am satisfied that you hoped to
    sell it and make some money out of it. Having said that though,
    I accept that you are a user of cannabis, and that some of the
    crop would have been used for your own use, and some of it would
    have been used by your friends." 12. A small commercial component. It is, in my opinion, very important to remember that the learned trial Judge said, having seen and heard the respondent, that he did not expect that the respondent would offend again. That is to say, the learned Judge found the respondent to be a man who would be moved by arrest, interrogation, committal and appearance in the District Court successfully to resolve not to offend again. I think this very important. 13. I think that the nature of the crop, the good record of the respondent and a likelihood that he would not offend again all march to justify the penalty imposed, both as to length of sentence and the suspension of its operation. By oversight the learned trial Judge did not fix a non-parole period. We must do so. I think that, too, that a reading of R v Osenkowski
(1982) 30 SASR 212 tells us that we should not interfere with sentence and suspension here. I need quote but a sentence of the reasons of the learned Chief Justice in that case. At page 212 His Honour said:- "There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform." 14. Fifty-four years of age. No prior convictions. Unlikely to offend again. Not a professional undertaking. The learned trial Judge was entirely justified in fixing a head sentence of 15 months. He was right to suspend its operation. I would refuse to grant leave to appeal. I would fix a non-parole period of nine months. 15. The Solicitor-General began his address thus:-
    "There are two matters raised here. First of all, the
    penalty in this particular case, and secondly as Your Honours
    would have seen from the Outline in this case, the Director asks
    the court to indicate yea or nay whether it is prepared to take
    judicial notice of certain matters frequently occurring in
relation to sentence under s32 of the Controlled Substances
    Act." 16. In his Outline he wrote:- "The Director of Public Prosecutions submits that the stage has been reached at which it is appropriate for the Courts of South Australia to take judicial notice of certain frequently occurring matters relevant to penalty under section 32 of the Controlled Substances Act, 1984 thereby avoiding expensive and unnecessary evidence on the question of sentence. National Trustees v Attorney-General (1973) VR 610, McInerney J at 612." 17. The Solicitor-General further submitted in his Outline that - "A Court may take judicial notice of matters which are not the subject of dispute between informed persons" and that - "Adequate proof in earlier cases may lay the foundation for judicial notice." 18. These submissions are sound so far as they go. But they do not, in my opinion, support the leap which the Solicitor-General made to his conclusion. That conclusion, as it appears in his Outline (on which he expanded) is:- "These principles permit a Court to take judicial notice of the normal yield current wholesale value current retail value of cannabis plants." 19. The Solicitor-General then offered a qualification. He wrote and again expanded upon his writing thus:-
    "It is submitted that it should be open to the accused or
    the Director of Public Prosecutions to adduce evidence to show
    that in particular circumstances the normal yield or current
    wholesale or retail value should not be used. It should also be
    open to the Director of Public Prosecutions to adduce evidence
    of changes in prevailing wholesale of retain values. Davey v
Harrow Corporation (1957) 2 All ER 305 at 307 Willing v Ewens
(1973) 7 SASR 231, Walters J at 235 Gilles, 'LAW OF EVIDENCE IN
    AUSTRALIA' (1987), 100-101 'PHIPSON ON EVIDENCE' (14th ed)
30-31 (para 2.07)." 20. Examination of the qualification raises an hurdle to the submission of the Solicitor-General. As Mullighan J pointed out in debate the qualification reverses the onus of proof. The answer of the Solicitor-General (put in my words) amounted to his saying that that was unfortunate, that that sometimes happens and that the greater good would come from allowing judicial notice to be taken of the yield and value of cannabis plants. But I say with all respect to the Solicitor-General's forceful argument that there is no real answer to the point by Mullighan J with which I respectfully agree. 21. The Solicitor-General drew attention to many things which had been treated as matters upon which judicial notice could be taken. I do not canvass them. With some I could not agree. The principle on which the permitting of judicial notice is based was stated by Isaacs J (with whom Barton ACJ concurred - the other member of the Court did not deliver a judgment) in Holland and Anor v Jones (1916-17) 23 CLR 149 at 153-154. Isaacs J said:-
    "The basic essential is that the fact is to be of a class
    that is so generally known as to give rise to the presumption
    that all persons are aware of it. This excludes from the
    operation of judicial notice what are not 'general' but
    'particular' facts. As to 'particular' facts, even the Judge's
    own personal knowledge is not to be imported into the case:
    Hurpurshad v Sheo Dyal LR 3 Ind App 259 at 286 and Meethun Bebee
v Busheer Khan 11 Moo Ind App 213 at 221. To import knowledge
    of a particular fact in issue would be to import evidence in the
    strict sense regarding a matter as to which the Court is
    supposed to have no knowledge whatever of its own.
     But if the fact is of such 'general' character as to give rise
    to the presumption mentioned, then a Judge is justified in
    'noticing' it. He must, however, be fully satisfied of the
    fact, and must be cautious to see that no reasonable doubt
    exists. To prevent doubt he may seek information in various
    ways, illustrations of which are found in 'TAYLOR ON EVIDENCE',
    vol.I, pp21-22. His own knowledge may for this purpose, and not
    as evidence in the real sense, be relied on, as the Magistrate
    did in the present case. And for this position authority is, if
    necessary, found in the judgment of Wills J in R v Field 64 LJMC
    158 at 160. It is evident that no exhaustive list can be
    compiled of things that are open to judicial notice.
    Illustrations of this truism will occur to everyone. That
    communication is possible by wireless telegraphy is a recent and
    conspicuous example. Several instances ancient and modern are
    to be found in Professor Thayer's treatise on 'EVIDENCE' (1898),
    at pp 305 and 306.
     Applying these observations to the present case, it would be
    mere idle affectation for an Australian Court not to 'know' -
    more particularly in war time - who is the Minister for Defence.
    He is one of the Ministers of State for the Commonwealth
referred to by sec 64 of the Constitution. His appointment and
public duties are matters of universal Australian concern." 22. That statement was adopted by Somers J in Auckland City Council v Hapimana (1976) 1 NZLR 731. Somers J referred, too, to the reasons of Lord Sumner in Commonwealth Shipping Representative v Peninsular and Oriental Branch Service (1923) AC 191 at 211 and 212. Lord Sumner speaking of the date of any particular military movement in the course of war as opposed to knowledge of the existence of a state of war said:-
    "My Lords, to require that a judge should affect a
    cloistered aloofness from facts that every other man in Court is
    fully aware of, and should insist on having proof on oath of
    what, as a man of the world, he knows already better than any
    witness can tell him, is a rule that may easily become pedantic
    and futile. Least of all would it be possible to require this
    detached and blindfold attitude towards events which the course
    of the late war has burnt into the memories of us all. It does
    not, however, seem to me, as at present advised, that the month
    and day at or about which a particular military movement was
    carried out, or that the existence between the Gallipoli
    Peninsula and Mudros Bay of the relation of active front to
    supply base, are matters as to which everybody can be deemed to
    be fully and accurately informed or of which judges can be
    required, in the legal sense of the words, to take judicial
    notice; still less is the fact - which is a matter of expert
    military training - that, in such a relation and about such a
    time, the simultaneous removal of such things as ambulance
    wagons from the base would have any particular connection with
    the operations going forward at the active front. At any rate,
    I have not found any authority which goes nearly so far, and
    there are many which, surprising as they are in any case, would
    be absurd, if the rule really went to this extent.
     I do not, however, think that this is a true case of taking
    judicial notice, for that involves that, at the stage when
    evidence of material facts can be properly received, certain
    facts may be deemed to be established, although not proved by
    sworn testimony, or by the production, out of the proper
    custody, of documents, which speak for themselves. Judicial
    notice refers to facts, which a judge can be called upon to
    receive and to act upon, either from his general knowledge of
    them, or from inquiries to be made by himself for his own
    information from sources to which it is proper for him to
refer." 23. These few cases demonstrate, I think, that this Court should decline the invitation of the Director of Public Prosecutions. No doubt normal yield and value of cannabis plants will be frequently proved. No doubt it is tiresome to have evidence much repeated. And tiresome for witnesses to be called to say the same things over and over again. But the normal yield and value are not pieces of information which can be expected to stick in the judicial mind with complete accuracy. Nor will those things be static. Nor will the value be the same for all crops of the same size no matter what the quality. If judges turn to stored information or evidence given in other cases they may use out of date information. The normal yield and value should be proved in each case. Of course, if there be no dispute we may expect agreed facts to be told to the Court. Perhaps a different conclusion than that which I have now reached will sometime in the future be reached. I cannot, myself, envisage it. But that may be the opinion of a timorous soul. In Evans v Benson (1987-88) 46 SASR 317 at 320 King CJ said:-
    "Courts hear much evidence about alcohol, its effects on the
    human system and the manner and rate of its absorption into and
    elimination from the blood. As time passes much of this
    knowledge becomes so common as to be a permissible subject of
    judicial notice. I think that courts must be entitled to take
    judicial notice of the fact that alcohol, once consumed, is
    progressively absorbed into and eliminated from the blood.
    Perhaps some judicial knowledge, within the most general limits,
    of rates of absorption and elimination may be permitted. I
    would not wish to exclude in advance the possibility of judicial
    notice that a gross divergence between the result of the blood
    test and the result of the breath test could not be reconciled.
    There are, however, so many variable factors and possibilities,
    arising out of drinking and eating history and constitutional
    idiosyncracies, that the possibility of judicial notice should
    clearly be approached with great caution." 24. I do not think that the time to allow courts to take judicial notice of the matters submitted by the Solicitor-General has arrived. I do not think that this Court should permit the taking of judicial notice of the normal yield, current wholesale or current retail value of cannabis plants.

JUDGE2 MULLIGHAN J I agree with Bollen J that the application for leave to appeal should be dismissed and I am in general agreement with the reasons which he expresses. The well known principles which govern Crown appeals against sentence would not permit interference with this sentence even if, on appeal, it appeared to be inadequate, which, in my view, is not the case. I regard the total sentencing package as appropriate in all the circumstances of the offence and of the offender. 2. Also, I agree with the observations of Bollen J as to the request of the Solicitor-General that we should decide that judicial notice may be taken of the normal yield, current wholesale value and current retail value of cannabis plants. Each of those matters is variable depending upon many factors, including where plants are grown, how they are cared for, when they are harvested, how they are sold and prevailing conditions in the drug trade from time to time. They are "particular" facts and may not be the subject of judicial notice: Holland and Anor. v. Jones (1917) 23 CLR 149 per Issacs J at pp 153-154. Furthermore, I question whether this matter properly arises for determination on this application for leave to appeal. The learned Judge made no decision as to whether judicial notice should be taken of any of these matters and the issue is not raised by any of the grounds upon which leave to appeal is sought. However, as both parties addressed full argument on the issue and it is said that the matter is of general importance to the courts which commonly deal with cases of this nature, I am content that this Court should express a view.

JUDGE3 DUGGAN J I agree that this appeal should be dismissed for the reasons given by Bollen J. 2. I desire, however, to add some comments on the question as to whether the learned trial judge was entitled to take judicial notice of the average yield of leaf and head which can be obtained from a cannabis plant and the current wholesale and retail values of the drug derived from the plant. 3. The many prosecutions for drug offences which have taken place over the last 20 years have equipped the courts to take judicial notice of some aspects of drug dealing and consumption. Although this court stressed the need for evidence on all aspects of drugs relevant to sentencing in R v Beresford
(1972) 2 SASR 446, by the time R v Tideman (1976) 14 SASR 130 was decided the court felt able to take judicial notice of the nature of indian hemp, its harmful effects and the extent to which they compared with the harmful effects of other drugs. 4. Whether or not other attributes of the drug are to be regarded as capable of being judicially noticed must depend upon whether the facts are "too notorious to be the subject of serious dispute". (Cross on Evidence (Australian Edition) para 3020.) As Tideman's case demonstrates facts may become notorious over a period of time during which they are the subject of repeated evidence. However I am not persuaded that this point has been reached in the case of the topics identified by the learned Solicitor-General. I should add, however, that I see no difficulty about the issue raised in the course of argument as to the onus of proof. If the matter is a proper subject for judicial notice then, of its very nature, there can be no dispute about it. Indeed there is some controversy as to whether it is permissible to call evidence to contradict the fact to be judicially noticed. (Wigmore on Evidence (Chadbourne rev 1981) Vol 9 para 2567.) It does not follow, however, that the opposing party is prevented from calling evidence to establish that the matter is disputable and that the taking of judicial notice is therefore inappropriate. In my view this does not have the effect of reversing the onus of proof; it is concerned instead with the means by which the particular fact can be proved.